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Robert C. Boisvert

Robert C. Boisvert, Jr. Employment & Labor

rboisvert@fredlaw.com
612.492.7101
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Dealing with the Absent Employee

By: ROBERT C. BOISVERT, JR.

August 2002

Dealing with employee absenteeism has never been more complicated. Federal and state laws, and oftentimes the employer's own contracts and policies, make it difficult to discipline absent employees. Employers may wonder whether there is anything they can do to deal with employee absenteeism.

Generally, employers can hold employees to reasonable, consistently applied attendance requirements. But, before taking any disciplinary action, employers should conduct a six-step analysis to determine whether the employee's absences are legally protected.

Step One: Is the Employee Covered by the FMLA?

First, the employer should determine whether the employee is eligible for leave under the federal Family and Medical Leave Act ("FMLA"). The FMLA covers employers with 50 or more employees in 20 or more calendar workweeks during the current or preceding calendar year. Eligible employees can take up to 12 unpaid workweeks of job-protected leave for the birth or adoption of a child, the employee's own serious health condition, or to care for his or her own parent, spouse, or child with a serious health condition. To be eligible for FMLA leave, the employee must have worked for the employer for at least 12 months, have worked at least 1250 hours for the employer during the previous 12 months, and work at a site at which the employer employs 50 or more employees within 75 miles.

FMLA leave does not have to be taken all at once. If medically necessary, an employee is entitled to take FMLA leave intermittently or on a reduced leave schedule if the absence is due to the employee's own serious health condition or the serious health condition of a parent, child, or spouse. If, on the other hand, the FMLA leave is taken for the birth or placement of a child, then the employer is not required to grant intermittent or reduced leave but may do so voluntarily. An employer may not retaliate against or discipline an employee for FMLA protected absences, even if the employer fails to recognize that the employee is entitled to FMLA leave. The employer must reinstate the employee to his or her position or its equivalent upon completion of FMLA leave.

Step Two: Is the Employee Entitled to MPLA Leave?

The Minnesota Parenting Leave Act (MPLA) entitles eligible employees to take up to six weeks of parenting leave per year for the birth or adoption of the employee's child. The MPLA applies to employers with 21 or more employees at one or more sites. To be eligible, the employee must have worked for the employer for at least 12 consecutive months immediately preceding the request for leave and must have worked an average of one half the full-time equivalent per week during that time. The MPLA, like the FMLA's parenting leave provisions, applies to both mothers and fathers.

In most cases, MPLA leave will run concurrently with FMLA parenting leave. There are, however, circumstances where an employee may be entitled to additional MPLA leave. For example, an employee who has used his or her full 12 weeks of FMLA leave due to a serious health condition would still be entitled to six weeks of parenting leave under the MPLA.

Step Three: Does the Employee Have a Disability That Must be Accommodated?

Regardless of whether the employee is entitled to leave under the FMLA or MPLA, the employer may still have obligations to allow certain absences under disability laws. The federal Americans With Disabilities Act (ADA) applies to employers with 15 or more employees. The Minnesota Human Rights Act (MHRA) applies to all Minnesota employers. Both prohibit discrimination against a qualified disabled person.

  • A "qualified disabled person" is a person with a disability who can, with or without reasonable accommodation, perform the essential functions of the job.
  • A "disability" is a physical or mental impairment that substantially limits one or more major life activities.

Both statutes require covered employers to reasonably accommodate qualified disabled persons unless doing so would impose an undue hardship. If an employee has a disability, the employer is required to explore with the employee whether it can be reasonably accommodated to enable the employee to perform the essential functions of the job. If there is an accommodation that would not impose an undue hardship on the employer, the employer is legally required to provide it.

Depending on the disability and the job, a reasonable accommodation may include altering the employee's work schedule, reducing his or her work hours, or allowing a leave of absence. Although an employer generally can hold all employees, including disabled ones, to reasonable attendance requirements, an employer may not be able to discipline an employee for absenteeism if it is caused by a disability that can be reasonably accommodated.

Step Four: Is the Employee Entitled to Other Legally-Protected Leaves?

The employer should determine whether the absences are protected by some other state or federal leave statute. For example:

  • School Conference and Activities Leave. Minnesota law requires employers to grant eligible employees unpaid leave of up to 16 hours a year to attend their child's school-related activities, including attendance at or monitoring of child care or pre-kindergarten conferences or activities.
  • Sick or Injured Child Care Leave. Minnesota law requires employers to allow employees to use accrued personal sick leave for absences due to an illness of or injury to the employee's child on the same terms the employee is able to use sick leave for a personal illness or injury.
  • Jury Duty Leave. Minnesota law provides that an employer may not terminate or take action against an employee for serving on a jury.
  • Voting Leave. Employees are entitled to time off with pay during election day morning to vote in state general elections or elections for United States Senators or Representatives, which necessarily include United States presidential elections.
  • Bone Marrow Donation Leave. Minnesota law requires that an employer with 20 or more employees grant a paid leave of absence of up to 40 work hours to an eligible employee who seeks to undergo a medical procedure to donate bone marrow. To be eligible, the employee must have worked an average of 20 or more hours per week.
  • Military Leave. Federal and state law require employers to grant employees time off when called to active duty and to reinstate them upon their return.

Step Five: Is the Employer Obligated by Contract, Policy, or Practice to Grant Time Off?

Before disciplining an employee for absenteeism, the employer also should look at its contracts, policies, and past practices. An employer may have, intentionally or not, contractually agreed to provide time away from work under certain circumstances. Disciplining the employee for taking such time off may then constitute a breach of contract.

Oral or written promises may form a contract if an employer's promise is (1) definite, (2) communicated to the employee, and (3) accepted by the employee.
For example, an employee handbook may provide that employees are entitled to sick leave or personal leaves of absence. If an employee qualifies for the sick leave or a personal leave of absence, the employer may be prevented from terminating if the absences are covered by the handbook's sick leave or personal leave of absence policies.

An employer's past practices may also restrict its ability to discipline for absenteeism. If the employer has allowed time off to others in the past for similar reasons, it should be consistent. If the employer appears to treat employees differently, it runs the risk of being sued for breach of contract and discrimination.

Step Six: Is it Fair?

Finally, the employer should consider fairness. The employer should evaluate how its actions will be perceived by the employee and others. If it seems insensitive or unfair, there is a greater risk the employee will sue and a jury or judge will rule against the employer.

Conclusion

Disciplining for employee absences is no simple matter. By following these six steps, however, an employer can better determine whether it is safe to discipline for an employee's absences. If the situation is unclear, or the employer suspects the employee may bring a claim against it, the employer should seek legal advice before acting.